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Why Is the FCC Regulating the Biggest Privacy Risk Platforms the Least?

The epic flaw in the FCC’s Title II privacy NPRM is that it purports to best protect consumers’ private information by only regulating broadband providers’ use of that private information, while emphatically protecting dominant edge platforms from FCC privacy regulation when they use that same FCC-regulated private information indiscriminately without consumers’ meaningful knowledge or consent.

Yes you read that right.

Apparently the FCC thinks it is more important to protect dominant edge platforms from FCC privacy regulation, than it is to protect consumers’ private information.

The issue of privacy lays bare the FCC’s contorted and arbitrary logic of both its Title II cleave that only ISPs can be gatekeepers, and that the goal of net neutrality, protecting dominant edge platforms from ISP interference, is logical and appropriate to apply to privacy. If it was, that would perversely mean that the purpose of the FCC’s privacy rules should be to protect edge providers’ businesses, not consumers’ privacy.  

If you want to see a visual representation of this problem, please see the attached one-page graphic here.

7 Top Takeaways from EU’s Google-Android-Tying Charges

The European Commission has charged Alphabet-Google with abusing its dominance in the market for “general Internet search services,” by implementing an Android “strategy of mobile devices to preserve and strengthen its dominance in general Internet search.” The EU objects to a variety of secret Google contract conditions to manufacturer licenses to leverage the dominant (>90% share) Android OS to secretly restrict and foreclose competition in ways that ultimately harm consumer choice and innovation. The EU effectively charged that Google has already anticompetitively extended its >90% dominance in search to dominance in the >90% share of the “licensable smart mobile operating system,” and to dominance in the >90% share of the “app stores for the Android” market.  

AllVid Deja-Vu: Google-YouTube’s Forcing Video to be Open to Piracy Again

The FCC’s AllVid proposal is déjà vu. We have seen Google-YouTube’s piracy-as-negotiating-leverage MO in action before.

Top Takeaways from Google’s Appeals Court Loss to MS State AG Jim Hood

For the last year, Google was above state law in the U.S.; fortunately, it no longer is.

The U.S. Fifth Circuit Court of Appeals just ordered dismissal of the Machiavellian preliminary injunction Google won in Federal Court over a year ago that squashed a 2014 Mississippi State Attorney General subpoena and state law enforcement investigation of Google’s alleged facilitation of “dangerous and illegal activities through its online platforms.”

Forty State AGs backed MS AG Jim Hood in Court because the Federal injunction that Google won effectively neutered all State AGs from investigating or prosecuting Google for most any alleged Google violation of most any State consumer protection law.

Simply, the Appeals Court ruled that Google faced no “irreparable injury” in having to comply with the MS State AG’s broad subpoena, and that “[T]he normal course of state criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the last analysis amount to nothing more than speculation about the future.”

The Obvious Google-Android Antitrust Case the DOJ & FTC Are Ignoring

Awkward.

EU antitrust chief Margrethe Vestager -- who formally has charged Google with abusing its search monopoly, and who also is formally investigating Google’s alleged contractual tying of its monopoly search app to create a monopoly Android operating system -- speaks Friday at the ABA antitrust spring meeting in D.C. on a panel with DOJ antitrust chief William Baer and FTC Chairwoman Edith Ramirez, at the awkward juncture when the EU is escalating its antitrust prosecution of Google while America’s DOJ and FTC apparently are ignoring the obvious antitrust case they know they have against Google.

In a nutshell, the obvious antitrust case against Google is this: the DOJ and FTC have long established Google is a monopoly demanding antitrust vigilance; U.S v. Microsoft settled that a licensed OS market definition excluding Apple is reasonable and that tying a monopoly OS to a strategic app harms consumers and innovation; Google’s contractual tying of its monopoly search to a nascent Android OS is a mirror image of what DOJ already proved monopolistic in U.S. v. Microsoft; Google apparently has monopolized mobile search and search advertising and prompted its only competitors, Yahoo and Microsoft Bing, to give up seriously competing with Google; and now the potential harms to consumers and innovation are escalating as Google is attempting to extend its Android mobile OS monopoly economy-wide to monopolize the Internet of Things.

FCC Unequal ISP Privacy Policy Is Unequal Protection & Unequal Opportunity

The FCC’s just-passed, 3-2 unequal ISP privacy policy spotlights how badly the FCC has lost its way.

In prioritizing the equality rights of inanimate digital bits above the equal protection and equal opportunity rights the American people enjoy under our constitutional republic, the FCC is discriminating in favor of open cronyism over equal consumer protection and equal competitive opportunity.

Moody’s Investors Service has done everyone a service in exposing the FCC’s Title II reclassification and privacy policy for what it really is – arbitrary unequal treatment under the law.

When the FCC proposed these ISP privacy rules three weeks ago, Moody’s called the FCC’s proposal as it saw it in a Sector Comment March 14 entitled: “FCC’s broadband privacy proposal credit negative for linear TV and wireless providers – Over half a trillion in rated debt affected.” 

AllVid: FCC-Sponsored Piracy Would Extend Google’s Monopoly & Monopsony

Google is the only major corporation publicly pressuring the FCC to require that all owners of proprietary video programming rights give away their valuable video property for free to Google and other companies online.

It is telling that to date no other major corporation has been willing to risk their brand publicly advocating for FCC-sponsored piracy to forcibly redistribute corporate wealth from Big Content to FCC-BFF-Google.

The evidence in this analysis will show that Google is the only entity in the world that has both the long-stated mission, i.e. “to organize the world’s information and make it universally accessible and useful,” and the global monopoly power and corporate functional capabilities to fully commercially exploit this FCC-sponsored piracy proposal.

Netflix’ Deceptive Throttling Will Have Lots of Unexpected Repercussions

For the last several years that Netflix has relished the role of Grand Net Neutrality Inquisitor accusing ISPs of throttling Internet traffic in alleged violation of net neutrality, Netflix actually has been secretly throttling its Internet-leading traffic in ways that it never disclosed to either its users, the public, or to the FCC/FTC.

This incredible net neutrality revelation could have lots more repercussions than many appreciate at first glance.  

We learned of this extraordinary duplicity from a WSJ story this week where Netflix was forced to fess up “that for more than five years it has limited its video speeds to most wireless carriers across the globe, including AT&T and Verizon…  Netflix said it doesn’t limit its video quality at two carriers: T-Mobile and Sprint because “historically those two companies have had more consumer-friendly policies.”     

Consider these under-appreciated repercussions.

What EU & Google Signals Are Telling Us about EU-Google Antitrust Outcomes

The recent comments and actions of the EU’s top antitrust enforcer, combined with recent drastic actions by Google, speak volumes about the tough EU antitrust outcomes Google faces going forward. While the Brussels-based media appreciate the serious antitrust risk Google faces in the EU, it is not clear whether the U.S.-based media or investors are paying much attention -- yet.

In a nutshell, recent signals from the EU and Google suggest that the conventional wisdom in the U.S. and among investors is underestimating the real antitrust risk to Google in imagining there ultimately will be a relatively benign settlement or just a fine, and not appreciating the EU’s likely Prohibition Decision remedy will impose a non-discrimination/neutrality duty against anticompetitive self-dealing, which could result in significant to substantial changes to Google’s business model and operations -- potentially globally.

The FCC’s New Subtractive Privacy Policy

Less is not more. That’s real “common sense.”

When one’s actions demonstrably create a worse rather than better outcome net-net, like the FCC’s new Title II ISP privacy policy does, others would justifiably consider it a mistake.

While the FCC obviously complied with President Obama’s call for regulating broadband as a Title II utility, the FCC obviously ignored President Obama’s 2011 call  for a 21st century regulatory system, where he said we are “making it our mission to root out regulations that conflict, that are not worth the cost, or are just plain dumb.”

Let’s consider how the FCC’s new privacy policy fails this President Obama stated standard for “modern” regulation.

When the FCC reclassified broadband to be a Title II telephone utility last year in its Open Internet Order, the FCC trumpeted one of the great net benefits would be increased consumer privacy protection.

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Q&A One Pager Debunking Net Neutrality Myths